Small estates are individually-owned property without a named beneficiary valued in 2022 at $184,500 or less. These small estates can be transferred with a simplified “Summary Probate” proceeding. This proceeding is allowed after an initial 40-day waiting period after death using fill-in-the-blank forms from the court.

Other types of assets that can be distributed outside of probate. These generally fall into three categories:

1. Jointly-Owned Property.Upon death, real estate and other assets, such as financial accounts transfer to the survivor(s) by operation of law without probate. It includes property owned in “Joint Tenancy”, and “Community Property” with right of survivorship.
2. Accounts With a Designated Beneficiary. Non jointly owned retirement accounts and life insurance policies with named beneficiaries do not go through probate. The beneficiaries are entitled to the assets immediately upon the death of the account or policy holder. Similarly, payable-on-death (POD) bank accounts and investments or property registered with a transfer on death (TOD) beneficiary avoid probate.
3. Trusts.You can design assets to avoid probate by holding them in a trust created during your lifetime. A trust creator can chance or cancel “Revocable Trusts” during the trust creator’s lifetime. You cannot modify “Irrevocable Trusts” once made. “Charitable Trusts” provide a level of income to the trust maker or beneficiary with the rest going to charity. (See below.)

For more information and do it yourself resources please refer to my article at https://www.sweeneyprobatelaw.com/articles/avoiding-probate-in-california-diy/

What is Probate?

Losing a loved one is traumatic for family, relatives, and friends. To make things worse those left behind are confronted with the problem of transferring property from the person who has died to others and often involves probate. In probate you must go to court. Dealing with the court process can be very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. You may wish to seek legal advice from a probate attorney or consider resources online such as:

Probate means that there is a court case that deals with:

• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a Will is valid; and
• Taking care of the financial responsibilities of the person who died.

In a probate case, an Executor (if there is a Will) or an administrator (if there is no Will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court.

In general, if there is a Will, the first step in probate is for the court to determine the validity of the Will. Probate also refers to the general administration of a deceased person's Will or the estate of a deceased person without a Will (“intestate succession.”)

Being nominated as an Executor does not mean you have to accept the nomination. One can refuse to be an Executor and the Court will then have to appoint a different person. Most persons nominated, however, do accept the obligation imposed, usually because the testator was a friend or relative who relied upon them to carry out their wishes. What do you have to know and do in order to perform the duties of an Executor? To learn what an Executor must do in administering and estate you might consider the following resource at Amazon.com:

Both the Will and Trust transfer an estate to named beneficiaries and/or heirs. However, the estate of a person who dies with a Will must be probated if the estate meets the applicable value threshold. Trusts can avoid probate court.

The idea of making a Will frequently raises the uncomfortable awareness of death. At a minimum, everyone should consider the adverse effect of avoiding responsibilities to survivors and charitable or community interests. At a minimum, a Will provides your survivors’ guidance for handling your estate and lessens the possibility of disputes. Better yet, a trust provides the same benefits without probate. For information regarding probate, Wills and trusts (and do it yourself possibilities), you might consider the following resource that can be obtained at Amazon.com:

For ways to avoid probate, and do it yourself resources, please refer to my articles at:

https://www.sweeneyprobatelaw.com/articles/avoiding-probate-in-california-diy/

https://www.sweeneyprobatelaw.com/articles/avoiding-probate-in-california/

Wills vs. Trusts: An Overview

Wills and Living trusts are similar. In a Will and in a Trust you state who you want to receive your property after you die. When a trust is created the creator appoints a person (“trustee”) who is given the responsibility for managing the creator’s assets for the benefit of the eventual beneficiary. Most often, the person creating the living trust is the first trustee of the trust. The benefits of a living trust over a Will are that living trusts:

• Avoid probate;
• Protect the privacy of your heirs. Trusts are administered privately and probate proceedings are public, and
• Both you and your spouse or you and your partner can create a “joint living trust,” thereby protecting each other as well as children and/or other beneficiaries.

Wills

When properly prepared, a Will is a legal document that directs the distribution of your assets after your death to your designated heirs and beneficiaries. It also can include instructions for matters that require decisions after your death, such as the appointment of guardians for minor children and/or directions for your funeral and burial.  If you decide you only need a Will and you want to create the Will there is self-help software available. The most popular is “Quicken WillMaker & Trust 2022” that can be found at Amazon.com with this link:

https://amzn.to/3BsOg1P

Trusts

Generally, there are two main types of living trusts: ones that are revocable and ones that are irrevocable. Also, there are Special Needs Trusts. Here are the big differences between them.

Revocable Trust

During their lifetimes, trust creators can create revocable trusts that can be altered, amended or terminated. Importantly, the creator of the trust can serve as its trustee. The creator effectively continues as the owner of the trust assets for tax purposes. The trust document can provide for a successor trustee, for example, upon the creator’s death or disability. Most importantly assets in a revocable trust will pass outside of the probate process. Simply executing a legal document called a Living Trust doesn’t mean you keep your family out of probate court upon your death. You have to “fund” your trust for it to be effective, i.e., transfer title of your money and property into the name of the trust. A good resource for preparing a revocable trust can be found on Amazon.com using the following link:

https://amzn.to/3L60G3c

Irrevocable Trust

In an irrevocable trust, unlike the revocable trust, the creator of the trust cannot have ownership rights to assets in the irrevocable trust. In addition, the creator of the irrevocable trust cannot be the trustee of the irrevocable trust. As a result, the income from the trust assets is not included in the creator’s taxable income and the assets are not included in the creator’s estate. If properly structured, the transfer of assets from the creator to the irrevocable trust may protect the assets from the grantor’s creditors. Irrevocable trusts can be complicated and a qualified attorney should be consulted.

Special Needs Trusts

What about the financial needs of individuals with disabilities (i.e., “special needs” that prevent or limit their ability to provide their economic support). “Special needs trusts” to the rescue. Special needs trusts can enable individuals with disabilities to receive financial support from the trust for particular purposes without jeopardizing their eligibility for federal and state public assistance programs, such as Supplemental Security Income (SSI) and other benefits.  These trusts must meet complex requirements set by federal and state laws and legal experts should be consulted. Before consulting with experts, it may be advisable to increase your knowledge before seeking legal help. You might consider the following resource at Amazon.com:

Importance of Wills and Trusts for Same-Sex Couples

In general, estate planning for LGBTQ+ legally married couples will be the same as married straight couples. However, estate planning for LGBTQ+ unmarried couples is essential. If you are in a partnership but not legally married and die intestate (without a Will), your partner could find themselves fighting with family or others over the departed's assets. LGBTQ+ couples could face potential discrimination from outside family members. The importance of a Will cannot be overstated. Without a Will, state laws will likely favor blood relatives over LGBTQ+ unmarried partners.

For example, if you die without a Will, intestate succession laws will determine who inherits your belongings, including your home. The goal is to ensure that the surviving partner can access all the legal benefits, despite not being legally married. For LGBTQ+ unmarried couples making a Will or trust, writing out a power of attorney document and health care proxy, and naming a financial power of attorney, are all ways to ensure your plans for your estate are carried out. A resource for married and unmarried couples, LGBTQ+ or straight, can be found at Amazon.com as follows: